Okay, the first thing I wonder is why Mark Levin plays stadium rock at the beginning of his show, and claims to be broadcasting from “a bunker under the brick and steel of a nondescript building.” And the answer comes to me at once – rock is, like it or not, the music of rebellion, and he is pretending to be a voice from what we used to call “the Underground,” and nowadays refer to as “the Resistance.” In fact, Mark Levin is a stooge for the rich, a phony rebel with a whiny voice that would identify him as a sellout in any venue other than one where spouting bullshit is the norm.

I’m here to respond to his sermon to the faithful about how the loss of Arlen Specter as a Republican Senator is no problem for the Republicans. Let’s start with a view from the reality zone, a place Levin avoids like cats avoid water – Specter is one powerful dude, and smarter than hell. Time and again we have seen him feint left, veer right, and head downcourt to sink the shot for the Republicans. He has the ability to sound like the voice of reason. He’s a graduate of Yale Law School, an Air Force veteran, and the twefth most senior member of the Senate. He is the Chairman of the Senate Committee on the Judiciary, the Senate Committee on Veteran’s Affairs, and the Senate Select Committee on Intelligence. Just take the Judiciary Committee position – he is top dog on the committee that will clear all Obama’s nominees to the Federal bench, including the next Supreme Court Justice who will replace outgoing Justice Souter. If this were a chess game, the Republicans just lost more than a bishop or a knight – they lost a rook, and they are going to miss him. But Levin’s listeners won’t get the facts, they’ll get this silly accusation, which would be true of any politician, and coming from Levin, sounds like a candid self-description:

AUDIO EXCERPT

People who disagree with Levin fall into two categories, “dishonest or delusional.” The truth as revealed to Levin by Reagan’s ghost, no doubt, is that the party has become a minority party because it has tried to be “all things to all people,” a process that has been going on “since 1989, the end of the Reagan era.”

AUDIO EXCERPT

Tell you what – I really want to give Mark Levin a chance hear, so I’m gonna look at his picture and try to surrender to his charisma. Oh, yeah, now it’s working. I remember it all now. Yeah, I remember the last eight years under Bush – what did we call him – “The Uniter,” wasn’t it? Riiiiiight, Mark, Karl Rove, closet Democrat, Dick Cheney, always making concessions, and Alberto Gonzales claiming to approve of torture, but actually a mole for the ACLU. It feels so good to re-imagine reality – this is better than believing in the Dalai Lama or Deepak Chopra or Kaballah – under the influence of Levin, I can believe anything!

Y’know, he has such ability to turn a phrase, the way he artfully flips sentence structures, that it overpowers my resistance. Listen to this:

And with that, Specter is history. Or less than history. Just roadkill on the political highway, scum under Levin’s boot. With the scum out of the way, he’s ready to get back to his important job, after selling fish oil, of course -- shilling for the rich. Listen to this – and this time, to accentuate the delivery, I’ll give you a little visual accompaniment:

AUDIO EXCERPT

God, Mark is mad about those bailouts! Yes, the billions that have been given away – that’s not what’s bothering him. The problem is, he wants the money for corporations and banks to be FREE FREE FREE! And to hell with the people who build the cars – the autoworkers – they don’t need to be Incentivized, they don’t need bonuses to keep them going in their pathetic little jobs. They aren’t bankers who have a necessary role in the future reorganization of the company. NO NO NO NO NO! Only people who wear pinstriped suits get to receive massive funding and retention bonuses – if you give power or money to the blue collar guys – that’s Communism! It’s okay to bailout banks, but not to demand stock in them. You can pour money down Wall Street’s throat, but you can’t ask them to do a flinkin’ thing.

And nightmare of nightmares, the government wants to provide people with health care. Bummer bummer bummer. Only old people should get health care. Only drug companies should receive massive infusions of federal funding through prescription drug buying deals. There’s a flu sweeping the nation, but I personally will be better off if the person flipping my burger, coughing on my lettuce, pays for his own healthcare – or doesn’t.

The government is stealing the wealth of future generations, as well as our own wealth, shouts Mark! Is he talking about the additional 600,000 unemployed people who have lost their jobs every month since the beginning of the year – that’s 20,000 a day? Hell no! They don’t have any stinkin’ wealth to lose. Maybe he’s worried about the 500,000 homeowners in Arizona, Nevada, California, Florida and Illinois – who received foreclosure notices in the first three months of this year. No, he’s not talking about them. Their wealth is gone, but the government didn’t take it the bankers did.

And Mark works for the bankers night and day, deflecting the righteous hatred of his listeners towards some Obama-shaped boogeyman, some hate-able liberal socialized megalith that came outta Washington and ate their wallet. They just want their pride back, their jobs back, their clear black-and-white, us-versus-them posture. Hell, they don’t know what they want. They don’t understand politics. But when they listen to Mark, with his fancy turns of phrase, stirring exhortations to stand for principle, they think they do. And when Mark drops his voice low, and asks “what we’ve come to,” at this point in our national life, they can imagine themselves standing straight and tall, like one of the Minutemen, like Paul Revere, or Thomas Jefferson, Ben Franklin, or Sam Adams. But in those days, guys like Levin weren’t talking revolution. They were talking about how the King’s rule was just, and holding forth about the rights that we had as Colonists under the crown. Because guys like Mark, who play rock music, but hate real rebels, who talk about how we’ve lost our freedoms, but shill for the rich, are not patriots – they’re bullshit artists. Thomas Jefferson and Sam Adams would know him for a poser, and a dangerous one at that.

PORNOGRAPHERS INFRINGE EMILY TRADEMARK AND MATTEL IS SILENT -- HOW SWELL IS THAT?, by Charles Carreon

05/19/09

Barbie’s Neglected Cousin Lacks A Champion

Will the real Emily Doll please stand up?

Remember the slogan, “You can tell it’s Matell — It’s Swell!” Well, it doesn’t seem very swell that young girls who do an online search for “Emily Doll” on Google, get this result — after the one paid spot, the first three entries are for porn sites!

The first two Google links go to the EmilyDoll.com website, that is owned by the same guy who owns TeenDolls.com.

The TeenDolls.com website is the mothership for EmilyDoll.com and other sites like it -- AlyssaDoll.com and BaileyDoll.com. This image below has been modified with a couple of clouds to conceal what is revealed at EmilyDoll.com, and it would take only a few clicks for a young girl curious enough to explore the mysteries of EmilyDoll.com to discover a new role model.

I’ve got to say John Albright has more nerve than sense. After all, there’s a Federal law, the The Truth In Domain Names Act of 2003, authored by no less an eminence than Senator Orrin Hatch, that seems to address this sort of conduct. Thinking perhaps this might be of importance to Mattel, I sent the following email to Mattel’s trademark lawyer:

Strangely enough, this email drew no response from Mr. Moore. Two weeks later, I called and left a message with his secretary, one of those detailed messages whereby you communicate the gravity of your concerns. But like a coin dropped down an exceedingly deep well, my inquiries werereciprocated by the silence of the tomb. Finally, I put my blogger’s hat on, and sent him a letter with a few questions, explicitly referencing the cybersquatting law and Truth In Domain Names Act:

I was particularly surprised by Mattel’s laissez faire attitude to the infringement of its registered trademark, because Barbie has always been such an aggressive litigator. Like in that BarbiesPlaypen.com case — it’s a landmark case, and Mattel’s rep for kicking the stuffing out of any clown stupid enough to play porn games with the Barbie name is legendary. See Ellen Rony’s comments on the topic in the Domain Name Handbook. But when I looked on the US Patent & Trademark website and found that Mr. Moore was the trademark godfather for both of these young ladies — Emily and Barbie — I couldn’t help but wonder — why doesn’t Emily merit any protection? Is it only the slender-hipped, bullet-bra type that gets any respect in Hollywood? Is a little girl not worthy of a little trademark muscle from the company legal department?

Well, if Mattel’s just going to play Humpty Dumpty

and sit on the wall while unscrupulous operators lure little girls into the skin trade, you might want to give them a hand to get off it. Adult websites certainly have their place in our world, but not at the top of a search page for “Emily Doll,” with a design and typestyle that is clearly meant to lure young girls into viewing what the law classes as harmful material.

U.S. Code

TITLE 18 > PART I > CHAPTER 110 > § 2252B

§ 2252B. Misleading domain names on the Internet

How Current is This? (a) Whoever knowingly uses a misleading domain name on the Internet with the intent to deceive a person into viewing material constituting obscenity shall be fined under this title or imprisoned not more than 2 years, or both.

(b) Whoever knowingly uses a misleading domain name on the Internet with the intent to deceive a minor into viewing material that is harmful to minors on the Internet shall be fined under this title or imprisoned not more than 10 years, or both.

(c) For the purposes of this section, a domain name that includes a word or words to indicate the sexual content of the site, such as “sex” or “porn”, is not misleading.

(d) For the purposes of this section, the term “material that is harmful to minors” means any communication, consisting of nudity, sex, or excretion, that, taken as a whole and with reference to its context—

(1) predominantly appeals to a prurient interest of minors;

(2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and

(e) For the purposes of subsection (d), the term “sex” means acts of masturbation, sexual intercourse, or physcial [1] contact with a person’s genitals, or the condition of human male or female genitals when in a state of sexual stimulation or arousal. --------------------------------------------------------------------------------

[1] So in original. Probably should be “physical”.

I can’t seem to get Michael Moore’s interest, but if some other people, like angry moms, started filling his inbox with complaints, it might make a difference.

And there’s always the government. A quick search of “enforcement of truth in domain name act of 2003″ lead me to a link where I found this:

WASHINGTON, DC - April 20, 2004 - As part of an ongoing effort to crack down on websites that deceive minors into viewing pornographic and obscene materials, the U.S. Department of Justice and the National Center for Missing & Exploited Children (NCMEC) announced today that the National Center's CyberTipline, a reporting mechanism for child sexual exploitation, will now feature the ability to receive reports from the public on misleading Internet domain names.

The new reporting feature was added today to the National Center's CyberTipline, accessible at http://www.cybertipline.com, or by calling 1-800-THE LOST (1-800-843-5678). The addition was prompted by a DOJ initiative, led by the Child Exploitation and Obscenity Section of the Criminal Division, to crack down on misleading domain names following enactment of the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act (the "PROTECT Act") on April 30, 2003.

Among other things, the PROTECT Act created a new federal law, codified at Title 18, Section 2252B of the United States Code, that makes it a crime to knowingly use a misleading domain name on the Internet with the intent to deceive a minor into viewing material that is harmful to minors on the Internet. This crime carries a penalty of up to four years in prison and/or a fine. An offender might commit this crime, for example, by using a domain name that features the name of a popular children's cartoon character, purposefully misspelled, and leads to a website featuring materials harmful to minors. The new law also makes it a crime to use a misleading domain name on the Internet with the intent to deceive any person into viewing obscenity, which carries a penalty of up to two years imprisonment and/or a fine.

"The Department of Justice and the National Center for Missing and Exploited Children are taking this step today to protect children from dangerous and inappropriate experiences on the Internet," said Attorney General John Ashcroft. "Now, alert and concerned parents can help law enforcement identify and dismantle these misleading Internet sites that are set up to lure their children into viewing obscene materials."

"This new feature will allow the public to take an even more active role in helping law enforcement clean up the Internet and protect our children," said Assistant Attorney General Christopher A. Wray of the Criminal Division.

"Though the Internet is full of educational and fun experiences for kids, there are individuals who misuse the Web to prey upon children's vulnerabilities," stated NCMEC President Ernie Allen. "We now have the means to combat this threat to kids, and with the public's help the CyberTipline will be even more effective as a bridge between law enforcement and concerned citizens."

The Department of Justice continues to prosecute violators of the Truth In Domain Names provisions of the PROTECT Act. In February 2004, John Zuccarini was sentenced by a federal judge in Manhattan to 30 months in prison on charges that he created and used misleading domain names on the Internet to deceive minors into logging on to pornographic websites. Those domain names included close misspelling of domains names that are popular with children, such as "www.dinseyland.com," (a variation on Disney Land's website) and "www.bobthebiulder.com," and "www.teltubbies.com" (variations on the websites for "Bob the Builder" and "Teletubbies").

The new feature has been added to the CyberTipline, which already provides members of the public a means to report child exploitation crimes, including the trafficking of child pornography, online enticement of children, child prostitution, child sex tourism, non-family child sexual molestation, and obscenity sent to children. Since its inception in March 1998 through April 2004, the CyberTipline has processed more than 230,000 reports of child exploitation crimes, a large number of which have been sufficient to refer to law enforcement for investigation.

If anyone asks you how you know that young people under the age of 18 are being lured into EmilyDoll.com, tell them that according to QuantCast.com, 11% of the thirty-five hundred visitors to EmilyDoll.com every month are between the ages of 12 and 17. That would be 350 a month, or more than ten per day, or one every couple of hours. See the chart below and click it for more information at the main quantcast.com website.

RANDOMNESS -- A MYTH SCIENTISTS CREATED TO SIMULATE IGNORANCE, by Charles Carreon

06/01/09

"Chance is but our ignorance of causes." -- Lamarck

May I propose a bet? I bet you think that life is kind of random. Even if you’re religious, and think that not a sparrow falls except it is marked by your father-figure in heaven, or that the All-knowing Maha-Kleptonanda keeps track of it all in the infallible Karmic Record, fundamentally you think that what comes next is no more knowable than the next roll of the dice or number about to come up in a lotto game. And as a result, you think that life is “random.” So I won the bet, right? Well now, give me three more minutes, and I’ll prove you wrong, and you’ll be so satisfied with my argument you’ll kiss the concept of randomness goodbye forever. Ready?

Randomness is a mathematically created concept used to simulate ignorance. What do I mean by that? Well, just imagine that you live where I live, on a cul-de-sac in a neighborhood where it’s easy to get lost. All day long, cars come through the cul-de-sac and they don’t stop. They just buzz through, obviously lost. Now if I were to write down all the car license numbers and give them to a math professor or an investigator on a list, and ask them to tell me what they all had in common, they couldn’t figure it out. They would just say they were random. But there’s nothing random about them. They were all cars driven by people who were lost in my neighborhood, almost certainly looking for someone else’s address nearby, but not on our cul-de-sac. Every car was driven by a person loaded with intention, not some random cruiser out to see what the front of my house looks like. Nothing random about them, but if you were ignorant of how I compiled the list of license plate numbers, you’d just have to assume they were random.

Take another example. We’re sitting on a park bench in front of a pond, and it’s just starting to rain. I ask you, “Where will the next drop fall?” You say, “I don’t know.” Or maybe you say, “How the hell would I know?” Right then, the next drop falls, making a ripple on the surface of the pond. Well, that wasn’t a random event. That raindrop had been falling out of the clouds for miles, and finally, it reached its destination, after being buffeted by crosswinds and polluted with dust, falling and falling with perfect purpose toward its inevitable collision with the surface of the pond. Nothing random about that. At no point did anything random happen to that raindrop, because everything other event that took place that affected the speed and direction of its fall, and determined the moment and place of its contact with the surface of the pond, were all, equally non-random. But since both you and I were ignorant of all of those factors, we simply say, “It’s random.”

To finish my explanation, I have to explain why I say it’s a “mathematically created concept used to simulate ignorance.” Here’s what I mean by that. Mathematics is not a process for generating random outcomes. It is a system for generating and analyzing determinable outcomes. Remember that’s what’s so awful about math – only one right answer – and you don’t know it. You might wish that math problems could be solved with random answers, but you could only peddle that notion in literature class, not math class. Computers are big calculators with clever layers of articulation laid over them called interfaces. You might, logically, conclude that computers have a hard time with the concept of randomness. Actually it’s worse than that, and I’ll now indulge in a literary digression. It’s said that Samuel Johnson once criticized someone’s book, and some nice person next to him said that he should be more charitable in his assessment, because it had been very difficult to write it. “Difficult!” Johnson retorted, “I wish it had been impossible!” Well, that’s how it is with computers and random numbers. It’s not only difficult for computers to generate a random number – it’s impossible.

Computer programmers know this, so they have these things they call “random number generators,” but all they do is generate a number that is good enough to be impossible for you to predict. In other words, since you are ignorant of how the computer generates the number, it’s as unpredictable as where the next raindrop will fall on the pond, or what the number of the license plate of the next car will be when it drives through my cul-de-sac. That’s just because you don’t know all the variables that would go into generating a solution. Since mathematicians want to generate solutions even to problems where there are too many variables, they turn dark holes of ignorance into wells of randomness. They start pulling numbers out of a hole, and say that since no one can predict which one will be next, there’s no order to it. It would be more honest for them to say that they do not know the order, but they’re too proud to do that, so they have enshrined the notion of randomness in mathematics as a tool for predicting outcomes using the data that is available. But it doesn’t mean that randomness is real. It’s not. Everything has a cause, nothing comes from nothing, and you shouldn’t confuse a mathematical tool with a cosmic reality.

Don’t you just love that Lloyd Blankfein? He’s the head of Goldman Sachs who’s just announced that his bank is cutting midyear bonus checks in the amount of $3,400,000,000. Midyear bonuses, you ask? Who gets those? Well, bankers do, because if they wait until the end of the year, in an economy like this, their profits might have evaporated.

Goldman is, as you should know, no longer an “investment bank,” as it was when it was run by former CEO Hank Paulson, who left it to orchestrate the Bush bailout during the meltdown of 2008. On September 21, 2008, Goldman decided to pick up some insurance, so it could put government money to work shoring up its finances, and became an FDIC-insured bank that can borrow at the effective zero interest rate that the Federal Reserve provides to big banks so they lend it to their borrowers for as much as the market will bear.If they have borrowers, of course, which Goldman does not. Goldman doesn’t do any consumer loans, but it still went ahead and borrowed $28,000,000,000 from the Federal Reserve, money that it is using to make money, and of course, pay bonuses. Those bonuses, Goldman is saying, are a reward for taking wise risks that paid off. I disagree. Goldman has insured against risk by buying influence. Perhaps you don’t know how they turned the AIG disaster into a goldmine. I’ll quote from Glenn Greenwald’s opinion piece in yesterday’s Salon:

Goldman … was A.I.G.’s largest trading partner, according to six people close to the insurer who requested anonymity because of confidentiality agreements. A collapse of the insurer threatened to leave a hole of as much as $20 billion in Goldman’s side, several of these people said.

But Goldman had the fix in. Remember when Edward Liddy took up the top position at AIG for $1 per year? Well, maybe he only got a dollar from AIG, but Liddy was a member of Goldman’s Board of Directors! And as head of AIG, he took bailout money and plugged that potential hole in Goldman’s bottom line, paying them 100 cents on the dollar for all the worthless “Credit Default Swaps” that Goldman had bought from AIG. How’s that for turning straw into gold? Flaming straw! How does Goldman do it? You know how they always say they have to pay big bonuses for “talent?” Well, Greenwald explains how it works when you pay for “talent”:

[Goldman] received some $13 billion through AIG. More troubling is that the original plan to bail out AIG was concocted at a meeting held last fall, run by then Treasury Secretary Hank Paulson who, before becoming Teasury Secretary, had been CEO of Goldman Sachs. Also attending the meeting was Lloyd Blankenfein, the current CEO of Goldman Sachs. Also at the meeting: Tim Geithner, then head of the New York Fed.

Yes, pay for talent, by all means. God forbid they would lack for the cash needed to buy influence. Since 1989, Goldman has made nearly $30,000,000 in political donations — to Republicans, Democrats, anything that votes! That meant that when Paulson hired Neil Kashkari, another former Goldman executive, to administer the TARP bailout, no one complained even slightly. They just let Goldman guys write Goldman more checks, and more checks, and more checks. Definitely there are no “balances.”Meanwhile, Americans who have no influence — whose Congressional representatives wouldn’t talk to them for anything in the world — are being booted out of their jobs and evicted from their homes, are looking through the want ads and scrounging for money to pay for health care if anyone will provide it to them since they have no insurance. All that suffering on Main Street has got some people listening to talk radio, and talk radio listeners could be forgiven for thinking that “socialized medicine” is about to destroy what my favorite right winger, the penguin-voiced Mark Levin, calls “the greatest health care system in the world.” Under “the Obama plan,” as Mark calls it, we will all have to wait in line for health care, and will be unable to get every little old treatment that we might desire. Yes, things will get bad, like they are in Canada, Europe and Britain. But almost 20% of Americans get their health care in the local ER, so how great is that?But I’ve been listening to talk radio long enough that I understand how it works. Corporations good, people bad. It’s a good thing to give billions to big corporations, because they are staffed by people who have a closet full of nice suits, and make fat campaign contributions. It’s a bad idea to give anything to people, because they rarely own even one good suit, and make no campaign contributions. If a corporation gets sick, lots of bankers lose money, like the angry bondholders in the GM bankruptcy. If a person gets sick, they just curl up and die, and no one really cares. So of course you want to insure banks, no matter how much it costs, and you totally wouldn’t want to insure people, no matter how much that might help them. Glad I got that clear in my mind.

On July 16, 2009, the AIDS Healthcare Foundation and Michael Weinstein petitioned the Los Angeles Superior Court for a writ of mandamus directing the Department of Public Health (DPH) to enforce California Health and Safely Code sections 120575 and 120 175 by requiring all performers to use condoms in the making of hardcore pornography in Los Angeles County.

Petitioner AIDS Healthcare Foundation (”AHF”) is a California nonprofit corporation. AHF is the nation’s largest private provider of HIV/AIDS medical care. … In addition, AHF operates the largest private HIV/AIDS and sexually transmitted disease testing and prevention program in California.

[A]n epidemic exists. County health officials have acknowledged it, documenting thousands of cases of sexually transmitted diseases among performers over the past five years. The spread of disease among performers in pornography endangers both the performers themselves and the public at large, due to the transmission of disease from performers to their sexual partners inside and outside the industry. Despite a ministerial duty to take all reasonable measures necessary to prevent the transmission of these diseases. officials with the Los Angeles Department of Public Health have done nothing to combat this known, serious health threat to the people of Los Angeles County, needlessly placing thousands of people at risk of disease and death.

DPH has cited numerous figures confirming an epidemic of sexually transmitted diseases among performers in adult films, including the following:

a. Performers in hardcore pornography are ten times more likely to be infected with a sexually transmitted disease than members of the population at large;

b. There were 2,013 documented cases of chlamydia among performers between the years 2003 and 2007;

c. There were 965 documented cases of gonorrhea among performers in the same period;

d. Many performers suffer multiple infections, with some having four or more infections over the course of a year;

e. In the period of April 2004 to March 2008 there have been “2,847 STD infections diagnosed among 1,884 performers” in the hardcore pornography industry in Los Angeles County.

DPH acknowledges that condoms are “[h]ighly effective in preventing HIV and other STDs” and would “likely have prevented all 3 female cases of HIV [in the industry] in 2003.” PPH asserts that condoms are used in less than 20% of heterosexual adult films, and that performers in heterosexual adult films who insist on using condoms can be banned from work.

DPH has observed that, without a legal requirement to use condoms in the production of adult films, performers are “effectively denied choice” to protect themselves because there is “too much economic pressure not to use, fear of being asked not to work again.” DPH is aware that industry efforts at self-regulation, including use of HIV testing, have not reduced the number of STD infections. DPH has noted that a year after the 2004 outbreak of HIV among hardcore pornography performers in Los Angeles County, the industry’s practices remained “mostly business as usual.”

There were no widespread changes in industry norms regarding the use of condoms, work practices during sex scenes, or industry training and education ofperfonners in the avoidance of sexually transmitted diseases, including HIV. California Health and Safety Code section 120575 provides that “[i]t is the duty of local health officers to use every available means to ascertain the existence of cases of infectious venereal diseases within their respective jurisdictions, to investigate all cases that are not, or probably not, subject to proper control measures approved by the board, to ascertain so far as possible all sources of infection, and to take all measures reasonably necessary to prevent the transmission of infection.”

DPH has failed to take “all measures reasonably necessary to prevent the transmission of infection” within the adult film industry. In fact, DPH has done nothing to prevent the transmission of disease in the production of pornography, tlnls allowing a significant public health risk to remain completely unchecked.” Pursuant to Health and Safety Code section 120175, DPH has a non discretionary ministerial duty to take reasonable steps to stop the spread of “contagious, infectious or communicable diseases,” including sexually transmitted diseases. DPH is aware of cases of infectious venereal diseases within its jurisdiction that are being spread due to practices within the hard core pornography industry. DPH has failed to take “measures as may be necessary to prevent the spread of the disease or occurrence of additional cases” within the adult film industry. In fact, DPH has taken no measures to prevent the transmission of disease in the production of hardcore pornography.

Everybody’s talking about the arrest of Alexandria Virginia’s Chief of Police for a big, fat .19 DWI. Don’t know if you’ve ever tried out the “breathalyzer,” but I can say with certainty that a .12 is hammered. When I was in the Jackson County District Attorney’s Office fifteen years ago, I did a controlled drinking session with the Oregon State Police, with Sr. Trooper Snook playing bartender. I drank 10 shots of tequila in two hours. Hit a .05 within the first hour, blew a .12 after 2 hours, and had killerheadache a few hours later. Strangely, I felt like I’d have been most dangerous behind the wheel at .05, when I was euphoric, exhilirated, and didn’t feel overtly impaired.

My fellow lawyer Jon Katz wrote a lengthy kind of bleeding-heartish, wrapped-in-the-Constitution blog post relying heavily on the presumption of innocence, the unreliability of the breathalyzer, and the “junk science” of “field sobriety tests.” I agree with him on all three counts, but at .19 you’ve got so much room for error that it’s pretty hard to beat. Somebody blowing a .19 would stink like a beerhall from ten feet away. Although I did beat .14 DUI in Oregon years ago — it happened for only one reason — my client was pulled out of a bar where he’d been drinking after Deputy Jo Gardiner said she saw him speeding a half hour earlier, and I proved that she was lying about the speeding. Cop lies, jury acquits. (In People v. Simpson, it wasn’t just that “the gloves didn’t fit” — it was the fact that Furman was a lying piece of it that caused the jury to acquit.)

But, however morally reprehensible driving about likkered up might be, it seems that DWT,Driving While Texting, increases the risk of accidents by more than twenty times. Of course, how long can it be before a Hollywood starlet is busted, drunk, coked up, and Twittering — “OMFG, I’m getting busted!”

You have to be careful when you hit the keyboard with a passion to defend your buddy. Boston Cop Justin Barrett has been suspended and is on his way to being sacked for this email, which has some gems. (The full text of the email is at the bottom of this post.) Even for those of us who don’t eat bananas in the jungle, the Barrett Email has some lessons for how to behave when confronted by an earnest expression of police interest:

Your defense of Gates while he is on the phone while being confronted [INDEED] with a police officer is assuming he has rights when considered a suspect. He is a suspect and will always be a suspect. His first priority of effort should be to get off the phone and comply with the police, for if I was the officer he verbally assulated like a banana-eating jungle monkey, I would have sprayed him in the face with OC deserving of his belligerent non-compliance.

There is just a lot to be learned from that comment, isn’t there? If you are a “suspect,” you have no rights, and anything other than responding to the cop’s inquiries is a form of “belligerent non-compliance.” In one way, the claims of Barrett and his lawyer that this was not a racist comment bear some additional consideration. In fact, if the “suspect” were a slightly intoxicated banker fumbling with the keys to his house, or a venerable Irish Monsignor responding to questions about pedophile activity, a different set of Boston police protocols might kick in, but for your average citizen, the failure to stand and deliver when addressed by a police officer may well ignite uncontrollable rage. And an angry cop can arrest just about anyone for no reason and let his “suspect” deal with the consequences.

The Fourth Amendment seems to be missing in action in this discussion. It guarantees our right to be free from unreasonable “searches and seizures,” and in the famous case of Payton v. New York, the U.S. Supreme Court held that the arrest of a murder suspect in his home without a warrant was unconstitutional. A person’s home is accorded special protection under our constitutional jurisprudence. Sgt. Crowley, who arrested Professor Gates, was violating the Fourth Amendment when he allowed his anger to get the better of him. Now Justin Barrett’s unintentionally honest defense of his fellow-officer has confirmed the arrogant attitude behind Sgt. Crowley’s actions.

While Obama now wants to dissolve all the tension at his “beer summit” by lifting a cold one in the company of Gates and Crowley at the White House, it seems the truth just wants to ventilate itself. And the truth is that when police get hot-headed, our rights are at risk. The Constitution and the Bill of Rights are there to rein them in, and to give us relief at the courthouse when they allow their passions to trample on our rights of dignity, freedom of movement, and freedom of speech. If I could have texted Obama an answer to give the reporters who asked him about Gates’ arrest, I would have texted this:

All American police officers are obligated to respect the civil rights of our citizens to remain safe in their homes from a warrantless arrest. If those rights were not respected in this case, then Prof. Gates would have a claim against Sgt. Crowley.

This comment would have dodged accusations of reverse racism and put the shoe on the right foot. Obama is the President of all Americans, and the Constitution and Bill of Rights protect the rights of all Americans. And don’t you forget it.

Stanley Milgram’s Obedience to Authority: An Experimental View, published in 1974, is a short book that became a must-read text for behavioral scientists by dropping the following bombshell: Ordinary people will intentionally torture other people with agonizing electrical shocks if a man in a white lab coat tells them that it’s all part of a “learning experiment.” Milgram managed to garner this information without actually shocking anyone. The “learners” being shocked were actors; the true subjects of the experiment were the “teachers;” and the experiment was designed to determine if any of the “teachers” could disobey the “experimenter’s” order to “proceed with the experiment” once the “learners” began to scream in pain.

Milgram’s data showed that, if they couldn’t hear the screaming, 65% of the “teachers” would give their “learners” what they believed was a 450 volt shock using a switch labeled “DANGEROUS.” If they were able to hear their “learner” screaming, 62.5% of the “teachers” would administer the 450 volt shock. If they had physically touched their “learner,” 30% of the “teachers” would administer the 450 volt shock. Milgram’s results were replicated in studies around the world, with the highest “obedience” score being recorded in a study in Munich, where 85% of the “teachers” would shock up to the highest level. Based on this data, Milgram reached a number of intermediate conclusions of doubtful validity, and one final conclusion that in this writer’s opinion, is almost certainly wrong.

In this essay, I first debunk Milgram's final conclusion -- that humans are hardwired to obey even evil and immoral orders -- then explain why his intermediate conclusions are unwarranted, and finally, derive what I believe are valid conclusions to draw from the experiment.

Milgram’s final conclusion is founded on the pseudo-Darwinistic generalizations so common among the scientists writing in the post-Second World War period:

Let us begin our analysis by noting that men are not solitary but function within hierarchical structures. In birds, amphibians, and mammals we find dominance structures (Tinbergen, 1953; Marler, 1967), and in human beings, structures of authority mediated by symbols rather than direct contests of physical strength. The formation of hierarchically organized groupings lends enormous advantage to those so organized in coping with dangers of the physical environment, threats posed by competing species, and potential disruption from within.

Let us begin by observing that Milgram refers to humans as “men,” and that men are the most violent half of the human species. Let us then deconstruct the blithe assertion that “men … function within hierarchical structures,” a statement that ignores the fact that all the evidence shows that historically, from the Neolithic cave-painter tribes to the aboriginal tribes of today, “hierarchical” society has not been the norm. Just as it has been said that, statistically, most people have eaten reindeer as the principal component of their diet, so also, most humans have lived in non-hierarchical societies.

Let us next consider how scientific a statement can be that attempts to derive a conclusion from a one-sentence generalization about “birds, amphibians, and mammals.” Aside from being ridiculously overbroad, it makes no sense. Is Milgram really saying that lions, that hunt in groups, are evolutionarily advantaged over tigers and jaguars, that do not? Really? Then consider this statement by Milgram, a little farther down the page: “Behaviors that did not enhance the chances of survival were successively bred out of the organism because they led to the eventual extinction of the groups that displayed them.” Is that so? Then why are there any tigers and jaguars left at all, if their individualized hunting system is inferior to that of their competitors?

Let us conclude by straining the jargon and hyperbole from this sentence, “The formation of hierarchically organized groupings lends enormous advantage to those so organized in coping with dangers of the physical environment, threats posed by competing species, and potential disruption from within. This mass of verbiage can be condensed to the following compact statement: “Heirarchical societies repel internal and external threats more effectively than non-hierarchical ones.” Excuse me? Is that why Cortez, with forty-nine men on horseback, defeated the entire Aztec empire? Aztec society was perhaps the most hierarchical in human history. Aztec priests, armed with divine authority, sacrificed numberless humans in an orgy of socially-approved bloodletting aimed at ensuring the yearly return of the sun. Cortez may have commanded a disciplined cadre of armed men, but surely Moctezuma’s “enormous” hierarchical leverage and enormous armies should have carried the day. Similarly, if hierarchy and numerical advantage is an evolutionary trump-card, the Incas should have prevailed over Pizarro, the Teutonic barbarians could not have toppled the Roman Empire, and Sitting Bull could not have won at Little Big Horn. Milgram’s argument that hierarchical societies are the product of natural selection is little more than hogwash laced with Darwin-flavored Kool-Aid.

Unconcerned that his argument is a counterfeit of valid evolutionary thinking, Milgram spends freely, erecting monuments of nonsense that have been taken at face value by generations of readers. Take this statement, in which Milgram concretizes the “enormous” advantage of hierarchy by evoking the monuments of the Pharaohs and ancient Athens: “We look around at the civilizations men have built, and realize that only directed, concerted action could have raised the pyramids, formed the societies of Greece, and lifted man from a pitiable creature struggling for survival to technical mastery of the planet.” Again “men” do all the building, and the fact that both Egypt and Greece built their cyclopean structures with slave labor is conveniently forgotten. One may well also ask, aside from attracting tourists, what advantages do the Parthenon and the Sphinx bring to the inhabitants of modern day Greece and Egypt? Finally, Milgram, writing at the height of the Cold War, conveniently forgets that our “technical mastery of the planet” placed humanity a button-push away from planetary holocaust, while for millions of years, our ancestors had never faced that danger, despite being “pitiable creatures struggling for survival.”

Milgram pumps the close of his pro-hierarchy sermon with one last scientific fable. Observing how, after “a wolf pack brings down its prey … the dominant wolf enjoys first privileges, followed by the next dominant one,” Milgram argues that the pack is “stabilized” by hierarchy – as if there had ever been a canine revolution or a Bolshevik wolf! From this anthropomorphic claim, Milgram derives a Confucian aphorism: “Internal harmony is ensured when all members accept the status assigned to them.” Forget that Confucius was concerned that without social rules society would go to the dogs -- Milgram has the dogs teaching philosophy!

Today, when the biggest dogs on Wall Street have eaten the entire economy and then some, the unemployed can take comfort in Milgram’s reminder that they are contributing to the stability of society by accepting a low place in the feeding hierarchy. Indeed, our species as a whole enjoys, yes, you guessed it, an “enormous” advantage. Ever wondered why Goldman Sachs and Morgan Stanley preside over the nation’s economy, paying its top employees millions in bonuses? Look no further than Stanley Milgram for an explanation – we are born to this subjugation, and better off for it, “because organization has enormous survival value,” and therefore “was bred into the organism through the extended operation of evolutionary processes.”

Perhaps you think I am being uncharitable, but Milgram needs no charity. He said he wanted to provide us with knowledge, and we shouldn’t accept ignorance in its stead out of respect for his ghost. Presumably because he caught humanity in an unflattering pose, all of his generalizations have been swallowed relatively uncritically. Having revealed his argument that obedience is biological destiny to be utter nonsense, we can proceed to the next level of the critique.

Milgram deceived the subjects of his experiment, the “teachers,” in at least three ways. First, he told them that he was conducting an experiment that he was not, in fact, conducting. Second, he told them that the experiment was lawful. Third, while the experiment was in progress, he had his white-coated “experimenters” tell the “teachers” that if anything happened to the learners, the consequences would not fall upon the “teacher,” but rather on the experimenter.

The first lie is obvious to everyone, but the reader must be careful to keep it in mind, remembering that although the experiment that Milgram performed was not illegal, the experiment the “teachers” thought they were performing would have been illegal, if they had actually performed it. Obviously, the experiment would not have “worked” without this deception.

The second lie is clearly not obvious, since it apparently didn’t occur to any of the participants, that the whole experiment they thought they were conducting was illegal. We may presume that Milgram didn’t recruit any criminal lawyers into his experiment, because any prosecutor or criminal defense lawyer would know that an experiment that subjects people to dangerous electric shocks would be criminal despite the “scientific” trappings. They would also tell you that, even if “learners” consented to suffer some level of harmless shock, refusing to stop the shocking after they demanded it would be criminal. An astute criminal lawyer might even suspect that the whole setup was devised as a “sting” operation by some imaginative prosecutor seeking to convict people of assault by electroshock.

For example, if the same criminal laws were applied to the “teachers,” as are applied to accused pedophiles, drug dealers, and weapons traffickers, the teachers could have been convicted of torture. Everyone has heard stories about the pedophile who engages in an online exchange in which some apparently sick person offers to set them up in a hotel room for a tryst with a ten-year old. Money changes hands, and the pedophile walks into Room 33 at the Roadside Chalet with a heart full of yearning and a bag of compromising novelties, children’s books and Valium, only to be met by a group of heavily armed men with an arrest warrant. Thousands of people are in prison right now for trying to buy drugs from police agents who had no drugs to sell, because the mere expressed intention to buy the illicit substance and an act in furtherance of that intention, is a convictable offense. In the arms-trafficking context, in 2005, a New Jersey jury convicted British citizen Hemant Lakhani merely for being willing to aid terrorists, by being present when an informant “sold” a fake shoulder-fired missile to the FBI. Lakhani, in his seventies, was sentenced to 47 years in prison.

Similarly, who could doubt that an aggressive prosecutor looking to pull off a “torture sting” could set up a Milgram-style “experiment,” and charge those who agreed to participate? Many jurors would vote to convict defendants who were demonstrably willing to administer additional shocks to victims who appeared to be screaming in agony. It wouldn’t matter that the “learners” in the sting were actors, just as it made no difference that the shoulder-fired missile in the Lakhani case was a fake. The commission of an act that the actor believed would cause agony would suffice for conviction.

So Milgram lied when he told the “teachers” that the experiment as they believed it was being conducted -- was lawful. In a fraud prosecution, the law defines such a lie as a “material misrepresentation,” because the truth about this subject would be “material” to a person making the decision whether to participate in the experiment. Nobody would have agreed to participate if they had been required to sign a waiver form that said, “I understand that the legality of this experiment is doubtful, and I could be prosecuted for assault or more serious crimes if the learners are injured by teaching shocks that I administer.” Let us imagine, for sake of analysis, that one of the “teachers,” unable to deal with the stress of being “forced” to continue shocking the “learners,” had fallen over dead of a heart attack. His heirs would have been legally justified in suing Milgram and his accomplices for fraudulently inducing him to participate in a risky activity that in fact caused death.

The third lie Milgram told was that “teachers” would bear no responsibility for their actions. This lie was delivered by the “experimenter,” the man in the lab coat, when “teachers” questioned whether it was really proper to continue shocking people who were screaming in pain already. The experimenter would say, “it’s my responsibility” or similar words that removed the burden of continuing the “experiment” from the teacher’s shoulders.

Milgram’s experiment thus does not prove what he claims – that people in a “legitimate” environment will torture other people because they are biologically programmed to obey authority. It proves that if people are conned by scientists into thinking that their acts are part of a genuine scientific study (that has of course been vetted for safety and legality), then they will do what, under other circumstances, they would not do – torture their neighbors with electroshock. It proves that scientists can develop a convincing con that can overwhelm people’s basic good sense by brandishing their credentials and supplanting lawful authority with a twisted simulation of a scientific setting.

Milgram asserts that people were unable to break the spell of “obedience” because they were in an “agentic state,” in which they have no independent will, and their body is merely a connecting rod between the will of their director and the task that must be performed. Milgram states that the stress of torturing people threatens to break them out of the agentic state, but certain “binding factors” prevent them from acting. There are essentially two “binding factors”: first, the subject’s fear that if he stops shocking the “learner,” it will confirm the wrongness of what he has done up until that point, and second, the subject’s fear that if he refuses to continue, he will break a commitment to the experimenter and insult his authority. The “agentic state,” Milgram asserts, taps into each person’s inner subordinate, a pure suckup, who does not look outward to see the world, but rather, looks up and sees his superior, who for him, becomes the world.

Milgram’s image of humans genetically programmed to serve as agents of superior authority, is fortunately unsupported by the evidence. Milgram has drawn false conclusions by refusing to acknowledge that he induced people to participate in the experiment by telling them it was lawful. He refuses to acknowledge that since the participation of his subjects in the “learning experiment” was procured by fraud, it was not voluntary. He further refuses to see that more than “binding factors” are preventing his subjects from abandoning the experiment. In addition to the “binding factors,” and obviously more importantly, they are prevented from renouncing that agreement by keeping them physically confined in the phony laboratory, and psychologically confined in a state of ignorance. If the truth that the learning experiment was unlawful had been revealed at the outset, he would have had no participants. And if it had been revealed when the screaming started, they would all have quit. So deception by creating a false appearance of lawful authority, not obedience to lawful authority, was the cause of the experimental results.

Milgram’s duplicity is equally in evidence when he cons his readers with his unwarranted conclusions. Deploying the jargon of natural selection, and tossing about a few platitudes about the glory that was Greece, he makes a quick and dirty argument that invokes Darwinism to support the silly claim that “obedience” is bred into humanity by millions of years of evolution. In truth, the social organizations of animals have been the subject of thousands of studies by natural scientists, and the term “obedience” does not feature prominently in their analyses. Milgram simply asserts his prejudice and claims that science supports it, but this is no more scientific than torturing people to teach them how to memorize word lists would have been. He is huckstering his readers with faux science just as he deceived his experimental subjects. His essay is supported with charts and graphs. He summarizes his findings in percentages by category. This must be science – it looks like it! On the contrary, it looks like science, but it is not.

What we can learn from Milgram is that people who lack an understanding of law and science can be manipulated by unscrupulous people. This is called criminality. It is not lawful authority. Whenever people are induced to commit acts that transgress the limits of law as they know it, whether it be the law of how to treat your neighbors, your children, or prisoners of war, the people who lead them into this moral transgression are criminals, and the people who commit the wrongful acts become criminals by participating. Milgram puzzles over what his subjects had to do in order to reach the level of refusing to participate in the experiment, but his analysis hits a dead-end when he decides to blame “evolution” for the tendency of people to give in to authority.

Evolution is not to blame, and our human biology does not doom us to slavish compliance with whatever top dog sits above us in the hierarchy. It is the abuse of authority by people who will create false, theatrical dramas to compel the obedience of other humans that can order soldiers to commit acts of war, torture, and mass killing. There is more than a passing similarity between how Milgram enlisted participants in his experiment, and how a nation of peaceful citizens is whipped up into a war fever. In both cases, lies are essential, and repeated assurances from the authorities that the whole enterprise is lawful and necessary. And the same missing factor – honest information about the experiment, or the war – would bring both to a grinding halt.

So we can learn from Milgram, so long as we don’t accept his conclusions. What we can learn is that whenever so-called authorities demand that we perform acts that we know, based on our deeply-ingrained social norms, are wrong, these authorities are acting outside of their lawful scope. Regardless of whether they are wearing lab coats, banker’s suits, police badges, military uniforms, or religious robes, if they direct us to violate moral or social law, they are not real authorities, they are deceivers, con-artists, attempting to exploit our ignorance. Whenever someone tries to overwhelm us with urgent demands, claiming that we must act contrary to past precedent because the old rules don’t apply in this “new” situation, we need to ask questions, demand answers, and declare our right to act according to our own inner moral guidance.

In every situation that presents a serious moral question for our decision, we must insist on our individual right to make that decision personally, based on our own convictions. We must reject Milgram's version of original sin, that we might call original servitude, and with it the notion that it is either right or inevitable that we should bow to the dictates of self-appointed authorities. As members of a democratic society, who bear the duty of self-governance, we must remember that we are individuals, born free, and can remain so only by asserting that we will live and act by the light of our own understanding. And authority be damned.

Has anyone tried to get health insurance lately? I haven’t had it since I stopped working for Jackson County, Oregon in 1994. It’s simply prohibitive. For many years, I couldn’t get the non-smoker rates, because I still smoked my daily cancer stick, but I’ve cut that out now. My wife started worrying about not having it, so I said, “enroll at Pima Community College and get the insurance the college kids get.” She did, and what a sad, sad joke that was. The doctors in town looked askance at the company, whose reputation in Tucson is apparently not good, and when the bills came in, they paid a paltry fraction. For this we were out well over a grand per semester, i.e., four-month period. Given our health care needs, it made more sense to keep it in the bank, pay for doctor visits out of cash, and if catastrophe hits, just plan on declaring bankruptcy.

Who Needs Insurance?

I’ve worked for adult entertainment industry clients for the last nine years. Without making too many assumptions, I think it is a safe bet that people in this industry rarely obtain health insurance for themselves or their employees. Content producers often fail to require even basic health precautions in shooting scenes where models are exposed to body fluids, and workplace regulations in this field are nonexistent, resulting in an epidemic of chlamidia and other STDs in the LA industry, which caused the AIDS Foundation of LA to file suit against the LA County Health Dept. Lest you think that’s unique to a dirty business, think again. There’s nothing unusual about this situation in the USA, where people are frequently exposed to hazardous substances while working at jobs that provide no health insurance.

Why Are Americans So Sick And Why Is It So Costly To Heal Them?

Excuse me, but the elephant in the room passing nasty gas is called Fast Food and the Sedentary Lifestyle. The major killers are heart disease, hypertension, obesity, diabetes. Christ, I talked to a young man at Fedex Kinkos who has gout! You used to have to be rich to get gout. Now any schmo can afford it. Fast Food is the Modern Bread Line — you can always supposedly buy a burger for under a dollar. But Obama should re-enact that scene in Moon Over Parador where Richard Dreyfuss, playing the role of replacement-for-a-dictator of a banana republic who goes on TV to encourage his citizens to eat healthy, “Our Paradorean food — it’s tasty — but it’ll kill you!” But if he tried, Arby would rope him, Wendy would shock him with a cattleprod, and Ronald McDonald would follow the late Ray Kroc’s adage and “stick a hose in his mouth.”

Fact is, everything about health care is backassward in this country, due to the dominance of greedy geezers who have a chokehold on the ballot box and anti-scientific agendas that legislate morality. It’s easier for an old drunk age sixty-six to get on kidney dialysis after rotting his liver with Thunderbird wine than it is for an eighth-grader with a working mom to get cavities filled. Needle-exchanges are deemed immoral, even though they close down the major vector of transmitting contagion, while the same interest group clamors to close the borders to protect against swine flu. Swine flu, for that matter, can’t be called swine flu, because the pig farmers have fed Congress so much slop they think it’s yummy. We are tied with Poland and Slovakia with the 29rd highest infant mortality rate in the world (big improvement though since 1960, when it was 12th, but the AIDS epidemic in Africa has skewed the numbers). It’s easier to get your face shot full of Botulin than it is to get treatment for skin cancer. And let’s not forget, if you’re a pop star, you can get a daisy chain of crooked MD’s to bleach your skin, carve your nose down to a stump, and issue scrips for all the sedatives you need to cope with the pain of celebrity and ultimately sedate yourself to death. At that point, the end of you will be the beginning of a windfall for the record companies, and lawyers for your estate will protect your legacy by stemming the flood of counterfeit merchandise, because after all, people come and go, but trademarks are eternal.

I’m sorry if I sound like Keith Olbermann, but this subject makes me feel like Schwarzennegger in T2 — I’ve got a Gatling gun, an endless belt of ammunition, and an infinite supply of targets. So I’ll stop now, before I get accused of indulging in an orgy of verbal violence.

Is It Competitive In The International Economy to Require People to Buy Their Own Insurance?

US businesses are at a competitive disadvantage with foreign companies in nations where health care is provided by the government. Case in point — health care costs for retirees are one of the primary causes of the GM bankruptcy. And take note, that in bankruptcy, the funds those retirees thought would be protected for their health care are going to be dwindling as financiers with lawyers sort through the wreckage. And it’s not rocket science or Nobel-prize economics to know that if you can’t afford health insurance for your employees, you’re not going to attract the “best and the brightest,” indeed, like me, you might not hire anybody at all, and just contract everything out.

Would Insuring People Protect A National Resource?

I have previously pondered why it is acceptable to insure banks as a matter of public policy, but not to insure the health of people. The issue is always put in the negative — it’s “too expensive to have people going to the ER for primary care,” and “health care costs are out of control,” etc. How about this for a novel thought? — People are our greatest resource, and they will be more productive and benefit society more abundantly if the have health care, food, and education. People think they only want to pay for their own kids to get health care, but consider the fact that some random kid who can’t get dental care or a college education might, if given a chance, go to school and discover the biotech solution to the cancer that you or your loved one may someday get. Or they might just reform the fast food industry and save us from our addictive appetites. Or negotiate peace in the Middle East, or … you get the idea. Incidentally, they will be less inclined to crime and spreading contagion by shooting IV drugs and letting their heads be used as semen receptacle to earn the price of a hit. But no, people are considered a burden, a mass of demands that need to have bread lines and entitlements to continue their lives as non-productive, uneducated “consumers,” and only corporations create value, so only corporations can suck the tit of Big Government.

The Third Circuit Court of Appeals upheld New Jersey District Court Judge Mary Cooper’s decision of all legal issues against IMEGA, a gambling trade association that had argued that the Unlawful Internet Gambling Enforcement Act of 2006, 31 U.S.C. § 5361 et seq. was unconstitutional.

The law makes it illegal for companies “engage in the business of betting or wagering” to accept checks, credit cards, or other forms of payment “to place, receive, or otherwise knowingly transmit a bet or wager by any means which involves the use, at least in part, of the Internet where such bet or wager is unlawful under any applicable Federal or State law in the State or Tribal lands in which the bet or wager is initiated, received, or otherwise made.” IMEGA, referred to in the opinion as “Interactive,” argued (1) that the Act was void for vagueness, (2) that it violated the right to privacy by preventing gambling in the privacy of the home, and (3) that it violated the First Amendment right to free speech.

The Third Circuit found all three arguments had no merit. The court decided: (1) The Act was sufficiently clear for any person “of ordinary intelligence” to understand it; (2) gambling is not protected from governmental impingement in the same way as is the right to have sex in the home; and, (3) the Act did not impinge on speech in any way.

We reject Interactive’s vagueness claim. The Act prohibits a gambling business from knowingly accepting certain financial instruments from an individual who places a bet over the Internet if such gambling is illegal at the location in which the business is located or from which the individual initiates the bet. 31 U.S.C. 5362(10)(A), 5363. Thus, the Act clearly provides a person of ordinary intelligence with adequate notice of the conduct that it prohibits.

It bears repeating that the Act itself does not make any gambling activity illegal. Whether the transaction in Interactives hypothetical constitutes unlawful Internet gambling turns on how the law of the state from which the bettor initiates the bet would treat that bet, i.e., if it is illegal under that states law, it constitutes unlawful Internet gambling under the Act.

In sum, we must reject Interactives facial challenge to the Act. Simply put, a gambling business cannot knowingly accept the enumerated financial instruments in connection with a bet that is illegal under any Federal or State law applicable in the jurisdiction in which the bet is initiated or received. Thus, the Act provide[s] a person of ordinary intelligence fair notice of what is prohibited. Williams, 128 S. Ct. at 1845.4A

Next, Interactive contends that the District Court erred in rejecting its claim that the Act violated a constitutional right of individuals to engage in gambling-related activity in the privacy of their homes. As noted above, the District Court held that Interactive lacked standing to assert the rights of third-party gamblers, and alternatively, that the claim failed on the merits.

We share the District Courts doubts regarding Interactives standing to assert these claims, particularly because Interactive does not itself have any relationship with individual gamblers, but rather seeks to assert third-party standing based on its members relationships with such gamblers. However, … we need not decide whether Interactive has standing because, even assuming that it does, we agree with the District Court that Interactives claim clearly fails on the merits.

Interactives reliance on those cases is misplaced. Both Lawrence and Earle involved state laws that barred certain forms of sexual conduct between consenting adults in the privacy of the home. Lawrence, 539 U.S. at 567; Earle, 517 F.3d at 744. As the Supreme Court explained in Lawrence, such laws touch[] upon the most private human conduct, sexual behavior, and in the most private of places, the home. 539 U.S. at 567. Gambling, even in the home, simply does not involve any individual interests of the same constitutional magnitude. Accordingly, such conduct is not protected by any right to privacy under the constitution.

Before the District Court, 8 Interactive primarily pursued a claim that the Act violated the First Amendment. Although Interactive stated at oral argument that it had not abandoned that claim, it only tangentially mentions this argument in its papers to this court. In any event, the Act only criminalizes the knowing acceptance of certain financial instruments in connection with unlawful gambling. Simply put, such conduct lacks any communicative element sufficient to bring it within the ambit of the First Amendment. United States v. OBrien, 391 U.S. 367, 376 (1968).